U.S. District Judge Colleen Kollar-Kotelly found that the Florence Correctional Center in Florence, Arizona, was likely violating the constitutional rights of detainees by depriving them of any means of privately meeting and conferring with attorneys. There are no private rooms for lawyers to share legal documents and the facility cannot guarantee that detainees can make confidential legal calls, Judge Kollar-Kotelly said.
"Because [Florence] has effectively blocked attorney access in toto, there is no constitutionally sufficient justification to avoid finding such a restriction 'excessive' and, therefore, punitive," the judge said Wednesday.
Within 60 days, ICE must ensure confidential legal access at Florence, either by installing six private attorney-client visitation rooms or installing one phone for every 25 detainees "that block all others from listening to legal calls while in progress," Judge Kollar-Kotelly ordered.
Since October, the judge has been reviewing five legal services providers' claims that access to counsel was functionally nonexistent in four detention centers — Krome Detention Center in Miami, Florida; Laredo Processing Center in Laredo, Texas; and the River Correctional Center in Ferriday, Louisiana; in addition to Florence. The communications restrictions both violate detainees' constitutional rights and run afoul of ICE's internal guidelines for allowing lawyers to communicate with clients in immigration detention, the organizations said.
Although Judge Kollar-Kotelly agreed that ICE was likely falling short in the Florence facility, she said the organizations weren't likely to show the agency was misacting in the other three.
The organizations had cried foul over alleged wait times to use visitation rooms, interpretation issues and purported policies barring attorneys from bringing phones or laptops into some rooms.
But Judge Kollar-Kotelly said they hadn't clearly shown that the restrictions weren't related to ICE's interests, such as its security interests. Moreover, the disputed policies and practices comply with ICE's Performance-Based National Detention Standards, as the three facilities each have space ensuring that attorney-detainee meetings are confidential, she said.
"Defendants perhaps could adopt the more permissive policies of the other institutions named in plaintiffs' declarations, but the Fifth Amendment does not require that they do so," she said.
The judge, however, called ICE's "spotty compliance" with its internal policies "deeply troubling." But noncompliance with internal policies isn't necessarily a constitutional injury and the U.S. Supreme Court has, over a series of rulings, instructed the courts to be wary of "jump[ing] into the shoes of the jailer," Judge Kollar-Kotelly said.
"In the past, the court was willing doing to do so only in the most exceptional of circumstances –– a global pandemic. As pandemic-related restrictions have waned, however, court supervision is far less necessary," she said.
Counsel for the organizations and the U.S. Department of Homeland Security didn't immediately respond to requests for comment Thursday.
The legal services organizations are represented by Eunice Cho, Kyle Virgien, Aditi Shah, Arthur Spitzer, Jared G. Keenan, Vanessa Pineda, Katherine H. Blankenship, Daniel B. Tilley, Janine M. Lopez, Amien Kacou, Adriana Piñon, Bernardo Rafael Cruz and Kathryn Huddleston of the American Civil Liberties Union, Katherine Melloy Goettel, Emma Winger and Suchita Mathur of the American Immigration Council, Stacey J. Rappaport, Linda Dakin-Grimm, Andrew Lichtenberg, Joseph Kammerman and Danielle Lee of Milbank LLP and James A. Morsch, Katherine S. Barrett Wiik, Steven Appelbaum, Christie R. McGuinness and Margaret Nolan of Saul Ewing Ahrnstein & Lehr LLP.
ICE is represented by Lauren Fascett and Jordan Hummel of the U.S. Department of Justice's Office of Immigration Litigation.
The case is Americans for Immigrant Justice et al. v. U.S. Department of Homeland Security et al., case number 1:22-cv-03118, in the U.S. District Court for the District of Columbia.
--Additional reporting by Emily Lever. Editing by Stephen Berg.
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